Om Prakash VII, J. (Member (J))
1. The present O.A. has been filed by the applicant u/s. 19 of the Administrative Tribunals Act, 1985 with the prayer for direction to the respondents to release the payment of half wages from 8.11.1993 to March 1994 and full wages from 1.4.1994 onwards, the pay on enhanced rate with increments due between 8.11.1993 to 1997, the amount of pay and allowances till July, 24, 2002 with consequential benefits, dues including retiral benefits, pension, gratuity, leave encashment as admissible to him for the services rendered during the entire period of his service till July 24,2007 when his services were removed six days before his retirement.
2. The brief facts of the case are that the applicant was appointed on the post of Ticket Collector on a substantive basis on 12.5.1963 and was later on promoted as Chief Inspector, Tickets, Mughalsarai in the year 1993. He was suspended by an order dated 18.11.1993 and he filed O.A. No. 1515 of 1998, which was disposed off vide order dated 11.11.1994 by this Tribunal with direction to the respondents to serve charge sheet to the applicant. Thereafter, charge sheet was served to the applicant. Suspension was revoked by the competent authority before the issue of charge sheet dated 11.2.1995. Applicant submitted his written defence against the charges leveled against him. Show cause notice dated 9.2.1995 was issued calling explanation from the applicant as to why he remained absent from duty from 14.4.1994 to 11.2.1995. Vide order dated 28.8.1997 (Annexure No. A-3), respondent No. 3 cancelled the charge sheet dated 7.4.1994. Vide registered letter dated 23.2.2000 (Annexure A-4), applicant received a fresh charge sheet. Applicant submitted reply on 21.9.2000. Applicant submitted representation dated 7.2.1997 (Annexure No. 5) praying to give half wages from 8.11.1993 to March 1994 and full wages from 1.4.1994 with annual increment but no salary was paid to the applicant. Applicant was served with another charge sheet dated 28.9.2001, asking him why he did not join service at transferred place i.e. Gaya. Thereafter, applicant was removed from service on 24.7.2002 six days prior to his retirement. Applicant filed O.A. No. 148/2003 which was dismissed on 29th May, 2006. Writ Petition filed before Hon'ble High Court and appeal preferred before Hon'ble Supreme Court were also dismissed. The contention of the applicant that applicant was removed from service vide order dated 24.7.2002, in which it is stated that SF-5 was issued to the applicant for his absence since 1997 and is altogether separate from the earlier charge sheet which were not at all concerned with the present case. As such applicant is entitled for his back wages. Applicant moved appeal dated 28.10.2010 and in response to the appeal dated 28.10.2010, the respondents vide letter dated 9.3.2011 informed that the payment of Rs. 1,25418 and Rs. 16400/- only has been passed for payment to the applicant. Applicant submitted his claim vide letter dated 25.3.2011 (Annexure No. A-13 to O.A.) and stated that applicant is entitled to more claim than the amount paid vide letter dated 9.3.2011 by the respondents.
3. Learned counsel for the respondents filed counter reply, stating therein that the applicant was placed under suspension w.e.f. 8.11.1993 to 12.4.1994 and suspension was revoked on 13.4.1994. Applicant remained absent un-authorizedly from 14.4.1994. Due to non-joining of working place, the revocation order was sent to his home address, which was received by the applicant on 11.2.1995. When applicant reported for duty, transfer order dated 13.3.1997 was handed over to him but applicant did not join at transferred place i.e. Gaya. For unauthorized absent, he was served with major penalty charge sheet dated 7.4.1994 which was later on cancelled for some defects. Again charge sheet dated 28.8.197 was served upon the applicant for long unauthorized absence. Disciplinary Inquiry was held and applicant was found guilty and on the basis of inquiry report, disciplinary authority issued punishment order removing the applicant from service w.e.f. 24.7.2002. He moved appeal dated 14.8.2002, which was also dismissed on 5.12.2002. Applicant filed O.A. No. 148/2003 before this Tribunal challenging the removal order, appellate order which was dismissed by this Tribunal vide order dated 29.5.2006. Writ Petition and SLP filed against the order of the CAT, were also dismissed. All the retiral dues of the applicant has been settled. No amount is due with the railway administration.
4. Heard the learned counsel for the parties.
5. Submissions of learned counsel for the applicant is that the applicant was working on the post of Chief Inspector Ticket in the respondents' Department. He was suspended on 08.11.1993 and suspension order was revoked on 31.03.1994. No subsistence allowance was paid of that period. Thus, confining his argument only for subsistence allowance, learned counsel for the applicant states that respondents be directed to pay the subsistence allowance as admissible under law to the applicant. To substantiate his argument, learned counsel for the applicant referred to the contentions of the OA as well as compliance affidavit and rejoinder affidavit. Learned counsel for the applicant has also placed reliance of the judgment of Hon'ble Apex Court in State of Jharkhand and another Vs. Amresh Narayan Sinha reported in (2020) 14 Supreme Court Cases, 411 [LQ/SC/2013/965] .
6. Learned counsels for the respondents referring to the counter reply argued that all the dues have already been paid to the applicant and nothing remained to be paid to him. Learned counsel for the respondents also refer to the documents annexed with the counter reply and further argued that applicant did not join services on the basis of transfer order passed by the department. Thereafter he was removed from service after inquiry. The said order was challenged before the Tribunal but the prayer was dismissed. Again, the applicant approached before the Hon'ble High Court, the same was also dismissed. No relief was granted to the applicant in the SLP filed before the Hon'ble Supreme Court. Thus, applicant is not entitled for any relief. Learned counsel for respondents has also placed reliance of the judgment passed by the Hon'ble Apex Court in the case of Vijay Kumar Agarwal Vs. UOI and others reported in (2015) 17 SCC 625 [LQ/SC/2015/1353] .
7. I have considered the rival submissions made by the parties and have gone through the entire record.
8. From perusal of record, it is evident that applicant was suspended w.e.f. 8.11.1993 to 12.4.1994 and suspension was revoked on 13.4.1994 but he remained absent un-authorizedly from 14.4.1994. Revocation order was sent to his home address thereafter applicant reported for duty and on the same day transfer order dated 13.3.1997 was handed over to him but applicant did not join at transferred place i.e. Gaya. For unauthorized absent, he was served with major penalty charge sheet dated 7.4.1994 which was later on cancelled for some defects. Again charge sheet dated 28.8.1997 was served upon the applicant for long unauthorized absence. Thereafter on the basis of inquiry report, vide punishment order, applicant was removed from service w.e.f. 24.7.2002. His appeal was dismissed. O.A. filed in the Tribunal has also been dismissed and affirmed by the Hon'ble High Court as well as Hon'ble Supreme Court. From perusal of record, it is clear that after revocation, applicant did not join his duty.
9. In the case of State of Jharkhand and another Vs. Amresh Narayan Sinha (supra), Hon'ble Apex Court has held as under:-
"On 6 July 2015, the State revoked the suspension of the respondent. Thereupon, a Writ Petition was filed by the respondent before the learned Single Judge. On 18 July 2016 the Single Judge directed the State Government to take a decision with respect to the payment of full salary for the period of suspension irrespective of the pendency of the criminal case. This direction of the learned Single Judge was affirmed by the Division Bench in a Letters Patent Appeal on 12 April 2017. The Division Bench, as well as the learned Single Judge held that, in view of the provisions of Rule 97 of the Jharkhand Service Code, 2001, the respondent would be entitled to full pay and allowances upon the revocation of his suspension, even if the departmental proceedings were pending against him Aggrieved by these directions, the State is in appeal. Rule 97 of the Jharkhand Service Code provides as follows:-
"Rule-97(1) When a Government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and
(b) Whether or not the said period shall be treated as a period spent on duty.
(2) Whether the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be.
(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe:
Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible.
(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose.
Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant." Sub-rule (1) of Rule 97 indicates that where a government servant is suspended, the authority competent to order the reinstatement has to consider and make a specific order regarding the pay and allowances for the period of absence from duty and on whether the period shall be treated as a period spent on duty. Sub-rule (2) indicates that where the authority concludes that the suspension was "wholly unjustified", the government servant shall be given full pay and allowances as if the order of suspension had not been passed. The High Court misconstrued the provisions of Rule 97 in coming to the conclusion that full pay and allowances must necessarily follow as a consequence of the suspension being revoked. This construction is contrary to the plain terms of Rule 97 as extracted above. The disciplinary proceedings have been held in abeyance pending the conclusion of the criminal trial. It is only after the conclusion of the departmental inquiry that the competent authority will have to decide, in terms of Rule 97, how the period of suspension should be treated and whether it is liable to be treated as a period spent on duty. A decision will be taken on the pay and allowances which should be allowed. The directions which were issued by the High Court at this stage were hence contrary to Rule 97."
10. In the case of Vijay Kumar Agarwal Vs. UOI and others (supra), Hon'ble Apex Court held as under:-
"With this background, we revert back to writ petition Nos. 916/2007 and 2768/2007. As far as writ petition No. 916/2007 is concerned, let it be recapitulated that it arises out of OA No. 1714/2003 wherein the petitioner had challenged the order dated May 13, 1996 by which his suspension was revoked. This OA was allowed by the Tribunal on the ground that it was necessary for the Government to pass composite order which was the requirement of Rule 5B of the Rules and since the Government had not indicated in the order as to how the suspension period would be reckoned and the decision for payment of salary during the suspension period was also not taken, the order was bad in law. The liberty, however, was granted to the State Government to pass fresh order regarding salary of suspension period. This part of the order granting liberty to the State Government was sought to be reviewed by the petitioner by filing review petition which was dismissed and this dismissal was challenged by the petitioner in the said writ petition No. 916/2007.
The High Court while dealing with this writ petition took the view that in case order revoking the suspension did not deal with the suspension period or payment of the salary for suspension period, order revoking suspension cannot be treated as void or non est. The only effect thereof would be that the competent authority is precluded from exercising its power under FR 54B and the legal position was that if while revoking the suspension or within a reasonable time thereof no order is passed pertaining to pay and allowances for the period of suspension, the authority is denuded from passing such an order. The necessary consequences thereof would be that the Government servant, in such a situation, is entitled to full salary for the period he remained under suspension. Therefore, High Court held that the petitioner was entitled to full pay and allowances for the period he remained under suspension and in the present case, the Supreme Court had already passed the order for grant of full salary for the period May 01, 1988 to May 13, 1996 and this amount had also been received by the petitioner though initially he had refused to accept the same when it was tendered to him in the Court. Moreover, the State of Maharashtra had not revoked the suspension on its own but to facilitate petitioner's inter-cadre transfer from Maharashtra cadre to Punjab cadre and, therefore, the order of revocation of suspension was not in exercise of power to revoke the suspension on the ground that the petitioner was no longer required to kept under suspension and these peculiar circumstances were not kept in mind by the Tribunal."
11. In the instant case, after revocation, applicant did not join his duty and remained absent un-authorizedly for which he was removed from service after inquiry. Removal order, appellate order were challenged before the CAT through the O.A., which was also dismissed and orders were affirmed upto the Hon'ble Supreme Court. Since the applicant after revocation of suspension, did not join his duty, no specific direction has been given by the Tribunal in O.A. No. 148/2003 regarding payment of half wages of suspension period, thus the court is of the view that case of Vijay Kumar Agarwal Vs. UOI and another will fully be applicable on him and applicant is not entitled for any salary during the period he was suspended.
12. Accordingly, O.A. is dismissed.
13. There shall be no order as to costs.
